Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 4 contracts
Samples: Credit Agreement (Addus HomeCare Corp), Credit Agreement (Addus HomeCare Corp), Credit Agreement (Addus HomeCare Corp)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrowers shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder V unless the Borrower, Agent Borrowers and the Required Lenders Term Agent agree to modify such provisions to reflect such changes in GAAP (and the Borrowers and the Term Agent agree to negotiate in good faith with respect thereto) and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding anything other provision contained herein, to the extent any change, adjustment, reversal or the like that would result in any obligation that, under GAAP as in effect on the date hereof would not be classified and accounted for as a Capital Lease, becoming classified and accounted for as a Capital Lease, such change shall be disregarded for purposes of determining “GAAP” under this Agreement. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Borrower or its Restricted Subsidiaries any Subsidiary of any Borrower at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.”
Appears in 4 contracts
Samples: Term Loan Agreement (Mediaco Holding Inc.), Term Loan Agreement (Mediaco Holding Inc.), Term Loan Agreement (Standard Diversified Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrower shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and ”, (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (iiiii) the Borrower shall provide to the Agent effects of Accounting Standards Codification 842 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) on capital lease and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for abovedebt obligations. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 4 contracts
Samples: Credit Agreement (Rimini Street, Inc.), Credit Agreement (Rimini Street, Inc.), Credit Agreement (Rimini Street, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent Agents and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. For purposes of determining (i) the US Dollar Equivalent of any Loan and any other amount used in connection with the calculation of the Maximum US Revolving Loan Balance and the Maximum Canadian Revolving Loan Balance in connection with (y) any proposed Borrowing (or upon any request for conversion or continuation of any Loan), shall be based upon the US Dollar Equivalent as in effect two (2) Business Days prior to such Borrowing, conversion or continuation or (z) the delivery of a duly completed Borrowing Base Certificate as required by subsection 4.2(d) (including the calculation of Aggregate Availability set forth therein), shall be based upon the US Dollar Equivalent as in effect on the date as of which the Borrowing Bases are calculated pursuant to such Borrowing Base Certificate, (ii) the US Dollar Equivalent of any Loan and any other amount used in connection with the calculation of the Maximum US Revolving Loan Balance and the Maximum Canadian Revolving Loan Balance in connection with any proposed issuance of a Letter of Credit (or upon any request for the amendment, renewal or extension thereof), shall be based upon the US Dollar Equivalent as in effect on the date of such issuance, amendment, renewal or extension, and (iii) compliance under each of Articles IV, V and VI, any amount in a currency other than US Dollars will be converted, on the last Business Day of each Fiscal Quarter or, more frequently as US Agent may require upon the occurrence and during the continuance of an Event of Default.
Appears in 4 contracts
Samples: Credit Agreement (Thermon Holding Corp.), Non Competition Agreement (Thermon Holding Corp.), Non Competition Agreement (Thermon Holding Corp.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) For purposes of determining pro forma compliance with any treatment financial covenant in connection with any “incurrence” test as of Indebtedness in respect any date prior to the first date on which such financial covenant is to be tested hereunder, the level of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as be the covenant level for such first test date. If the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the last day purposes of any specified measurement perioddetermining such availability or compliance, regardless the cash proceeds of when such Indebtedness, shall not be included in the financial statements reflecting calculation, if applicable, of cash or Cash Equivalents included in the determination of such breach are delivered to Agentleverage ratio.
Appears in 4 contracts
Samples: Credit Agreement (Spinal Elements Holdings, Inc.), Credit Agreement (Spinal Elements Holdings, Inc.), Credit Agreement (Spinal Elements Holdings, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. No If, after the date hereof, any change occurs in GAAP or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then the Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of any financial statement hereafter adopted by Holdings shall be given effect for purposes such provision, regardless of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action Accounting Change Notice is permitted hereunder unless given before or after such Accounting Change or in the Borrowerapplication thereof, then the Administrative Agent and the Required Lenders Borrower agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall that they will negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject amendments to the approval provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Required Lenders); provided that Administrative Agent and the Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until so amended any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto Accounting Change had occurred and (ii) the Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation Administrative Agent, between calculations of such ratio or requirement made any baskets and other requirements hereunder before and after giving effect to such change in GAAPAccounting Change. Without limiting the foregoing, leases All components of financial calculations made to determine compliance with this Agreement shall continue be adjusted to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changesinclude or exclude, as provided for above. A breach the case may be, without duplication, such components of a financial covenant contained in Article VII shall be deemed such calculations attributable to have occurred as any Acquisition or disposition of assets consummated after the first day of the last day applicable period of any specified measurement determination and prior to the end of such period, regardless as determined in good faith by the Borrower based on assumptions expressed therein and that were reasonable based on the information available to the Borrower at the time of when preparation of the financial statements reflecting Compliance Certificate setting forth such breach are delivered to Agentcalculations.
Appears in 4 contracts
Samples: Credit Agreement and Guaranty (C4 Therapeutics, Inc.), Credit Agreement and Guaranty (C4 Therapeutics, Inc.), Security Agreement (Chembio Diagnostics, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Partnership shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. For the avoidance of doubt and in accordance with the foregoing sentence, to the extent that a change in GAAP after the date hereof requires operating leases (as opposed to capital leases) to be treated as “indebtedness”, no such change in GAAP shall be given effect for any purposes under the Loan Agreement or any other Loan Documents, and Indebtedness hereunder shall not include any such obligations under operating leases solely as a result of such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 3 contracts
Samples: Credit Agreement (Rentech Nitrogen Partners, L.P.), Credit Agreement (Rentech Nitrogen Partners, L.P.), Credit Agreement (Rentech Nitrogen Partners, L.P.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinGAAP, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.14, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the BorrowerParent, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII Financial Performance Covenant shall be deemed to have occurred as of any date of determination by Administrative Agent or Required Lenders as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, GAAP after the Closing Date.
Appears in 3 contracts
Samples: Credit Agreement (Vireo Growth Inc.), Credit Agreement (Vireo Health International, Inc.), Credit Agreement
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement periodMeasurement Period, regardless of when the financial statements reflecting such breach are delivered to Agent. Notwithstanding anything contained in the Credit Agreement or any other Loan Document to the contrary, for all purposes under the Credit Agreement, including for purposes of calculating amounts under any Compliance Certificate (and for the calculation of any other amounts defined under Exhibit 4.2(b)), the parties hereto hereby acknowledge and agree that, regardless of the accounting treatment of the real property lease for any particular Site (the “Site Leases”), so long as no Credit Party or Subsidiary of a Credit Party holds fee title to such Site, the amount of all obligations of any Person under the Site Leases shall be treated as operating lease obligations regardless of the accounting treatment of such Site Leases under GAAP.”
Appears in 3 contracts
Samples: Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If any change in GAAP results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, the Agent and the Required Lenders agree to amend such provisions of this Agreement or any other Loan Document so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluating the Credit Parties’ financial condition shall be the same after such change in GAAP as if such change had not been made; provided that, no change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, the Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to the Administrative Agent. Notwithstanding any change in GAAP after the Closing Date that would require lease obligations that would be treated as operating leases as of the Closing Date to be classified and accounted for as capital leases or otherwise reflected on the Credit Parties’ consolidated balance sheet, for the purposes of determining compliance with any covenant contained herein, such obligations shall be treated in the same manner as operating leases are treated as of the Closing Date.
Appears in 3 contracts
Samples: Credit Agreement (Truck Hero, Inc.), Credit Agreement (Truck Hero, Inc.), Credit Agreement (TA THI Parent, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent Issuer and the Required Lenders Purchasers agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) For purposes of determining pro forma compliance with any treatment financial covenant in connection with any “incurrence” test as of Indebtedness in respect any date prior to the first date on which such financial covenant is to be tested hereunder, the level of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as be the covenant level for such first test date. If the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the last day purposes of any specified measurement perioddetermining such availability or compliance, regardless the cash proceeds of when such Indebtedness, shall not be included in the financial statements reflecting calculation, if applicable, of cash or Cash Equivalents included in the determination of such breach are delivered to Agentleverage ratio.
Appears in 3 contracts
Samples: Second Lien Note Purchase Agreement (Spinal Elements Holdings, Inc.), Second Lien Note Purchase Agreement (Spinal Elements Holdings, Inc.), Second Lien Note Purchase Agreement (Spinal Elements Holdings, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrowers shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder V unless the Borrower, Agent Borrowers and the Required Lenders Term Agent agree to modify such provisions to reflect such changes in GAAP (and the Borrowers and the Term Agent agree to negotiate in good faith with respect thereto) and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding anything other provision contained herein, to the extent any change, adjustment, reversal or the like that would result in any obligation that, under GAAP as in effect on the Closing Date would not be classified and accounted for as a Capital Lease, becoming classified and accounted for as a Capital Lease, such change shall be disregarded for purposes of determining “GAAP” under this Agreement. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Borrower or its Restricted Subsidiaries any Subsidiary of any Borrower at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.”
Appears in 3 contracts
Samples: Term Loan Agreement (Mediaco Holding Inc.), Term Loan Agreement (Mediaco Holding Inc.), Term Loan Agreement (Mediaco Holding Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly GAAP, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise provided specifically prescribed herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, the Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as a Capital Lease solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, GAAP after the Closing Date.
Appears in 2 contracts
Samples: Credit Agreement (PARETEUM Corp), Credit Agreement (Elephant Talk Communications Corp)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If at any time, any change in GAAP would affect the accounting principles used in the preparation computation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with ratio, covenant or other requirement in any provision of Article VI Loan Documents, and either the Borrower or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree so shall request, the Agent, the Lenders and the Borrower shall negotiate in good faith to modify amend such provisions ratio or requirement to reflect preserve the original intent thereof in light of such changes change in GAAP andprovided that, unless until so amended, such provisions are modifiedratio, all financial statements, covenant or other requirement shall continue to be computed in accordance with GAAP prior to such change therein and Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 2 contracts
Samples: Credit Agreement (Metropolitan Health Networks Inc), Credit Agreement (Metropolitan Health Networks Inc)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Loan Agreement shall be prepared in conformity with, unless expressly Applicable Accounting Standards, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise provided specifically prescribed herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Spark or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement unless Spark, the Borrower, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP Applicable Accounting Standards and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPApplicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agent.be delivered to any Agent or any Lender. In addition, (i) any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capitalized Lease in accordance with any change in Applicable Accounting Standards, and (ii) any real property or real estate lease shall be not be deemed to be a Capitalized Lease. 50
Appears in 2 contracts
Samples: Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for Parent and its Subsidiaries, in each case without duplication. If Parent or the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in either case, occurring after the Closing Date, then the Lenders, Parent and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders, Parent and the Borrower after such change or issuance conform as nearly as possible to their respective positions as of the Closing Date and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) Parent and the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPor issuance. Notwithstanding anything herein to the contrary, for purposes of Section 9 hereof and any other provision negative covenant in the Loan Documents (but not, for the avoidance of doubt any financial reporting obligations under the Loan Documents), with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 842 on the definitions and covenants contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving GAAP as in effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 20162018, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentapplied.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (Allurion Technologies, Inc.), Credit Agreement and Guaranty (Allurion Technologies Holdings, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. No If, after the date hereof, any change occurs in GAAP or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then the Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of any financial statement hereafter adopted by Holdings shall be given effect for purposes such provision, regardless of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action Accounting Change Notice is permitted hereunder unless given before or after such Accounting Change or in the Borrowerapplication thereof, then the Administrative Agent and the Required Lenders Borrower agree that they will negotiate in good faith amendments to modify the provisions of this Agreement that are directly affected by such provisions Accounting Change with the intent of having the respective positions of the Administrative Agent and the Borrower after such Accounting Change conform as nearly as possible to reflect such changes in GAAP their respective positions as of the date of this Agreement and, unless until any such amendments have been agreed upon, (a) the provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder in this Agreement shall be provided together with calculated as if no such Accounting Change had occurred and (b) the Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith to amend such ratio or requirement to preserve by the original intent thereof in light of such change to GAAP (subject Borrower based on assumptions expressed therein and that were reasonable based on the information available to the approval Borrower at the time of preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (Biodesix Inc), Credit Agreement (Biodesix Inc)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect ; provided that, for purposes of measuring determining compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision covenant contained herein, all terms Indebtedness of an accounting or financial nature used herein the Parent Guarantor and its Subsidiaries shall be construed, and all computations of amounts and ratios referred to herein shall be made, construed without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 842, Leases (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) (and related interpretations) to value the extent any lease (or similar arrangement) would be required to be treated as a capital lease thereunder where such Indebtedness lease (or arrangement) would have been treated as an operating lease under GAAP as in effect immediately prior to the effectiveness of such Accounting Standards Codification. Unless otherwise expressly provided, all financial covenants and defined financial terms shall be computed on a reduced or bifurcated manner as described thereinconsolidated basis for the Parent Guarantor and its Subsidiaries, and such Indebtedness shall at all times be valued at the full stated principal amount thereofin each case without duplication. If at the Borrower requests an amendment to any time provision hereof to eliminate the effect of (a) any change in GAAP would affect or the computation application thereof or (b) the issuance of any financial ratio new accounting rule or requirement set forth guidance or in any Loan Documentthe application thereof, and in each case, occurring after the Borrower or the Agent shall so requestdate of this Agreement, the Agent, then the Lenders and the Borrower shall agree that they will negotiate in good faith amendments to amend such ratio or requirement to preserve the original intent thereof in light provisions of this Agreement that are directly affected by such change to GAAP (subject to or issuance with the approval intent of having the respective positions of the Required Lenders); provided that Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until so amended any such amendments have been agreed upon, (i) such ratio or requirements the provisions in this Agreement shall continue to be computed in accordance with GAAP prior to calculated as if no such change thereto or issuance has occurred and (ii) the Borrower shall provide to the Agent Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation Lenders, between calculations of such ratio or requirement made any baskets and other requirements hereunder before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentor issuance.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (Menlo Therapeutics Inc.), Credit Agreement and Guaranty (Foamix Pharmaceuticals Ltd.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP; provided that notwithstanding the foregoing or anything to the contrary herein, all leases of the Borrower and its restricted subsidiaries that are treated as operating leases for purposes of GAAP on the Closing Date shall continue to be accounted for as operating leases regardless of any change in, or in the application of, GAAP following such date that would otherwise require such leases to be treated as capital leases. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (a) For purposes of determining pro forma compliance with any financial covenant as of any date prior to June 30, 2021, such provision shall assume that the relevant Test Period is the Test Period ending on March 31, 2021, and the level of any such financial covenant shall be deemed to be the covenant level for the Test Period ending March 31, 2021, and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage 183 ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage ratio; provided that, to the extent the proceeds of any such Indebtedness are to be used to repay other Indebtedness, the foregoing shall not limit the Borrower’s ability to give Pro Forma Effect to such repayment of Indebtedness and all other appropriate pro forma adjustments. Notwithstanding anything to the contrary contained herein, any obligation of a Person under a lease that is not (or would not be) required to be classified and accounted for as a Capital Lease on a balance sheet of such Person under GAAP as in effect and implemented on June 26, 2019 shall not be treated as a Capital Lease as a result of the adoption of changes in GAAP or changes in the application of GAAP.
Appears in 2 contracts
Samples: Credit Agreement (R1 RCM Inc.), Credit Agreement (R1 RCM Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Loan Agreement (including Section 8.01) shall be prepared by an Authorized Officer, unless expressly otherwise provided herein, be made in accordance conformity with GAAP, consistently applied, (in each case, except as otherwise specifically prescribed herein). No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement in each case, unless the Borrower, the Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agentbe delivered to any Agent or any Lender. In addition, any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capitalized Lease in accordance with any change in GAAP. Notwithstanding anything to the contrary contained herein, all obligations of any Person that are or would have been treated as operating leases (including for avoidance of doubt, any network lease or any operating indefeasible right of use) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Loan Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Lease Obligations in the financial statements to be delivered pursuant to Section 8.01.
Appears in 2 contracts
Samples: Loan Agreement (Mimedx Group, Inc.), Loan Agreement (Mimedx Group, Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinGAAP, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.14, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the BorrowerParent, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII Financial Performance Covenant shall be deemed to have occurred as of any date of determination by Administrative Agent or Required Lenders as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent.. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, GAAP after the Closing Date.
Appears in 2 contracts
Samples: Credit Agreement (Goodness Growth Holdings, Inc.), Credit Agreement (Goodness Growth Holdings, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin this Agreement or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent Borrower and the Required Lenders agree to modify such provisions to reflect such changes in GAAP andGAAP, and unless such provisions are modified, all financial statements, Compliance Certificates statements and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained hereinherein or in any other Loan Document, all terms of an accounting or financial nature used herein and in the other Loan Documents shall be construed, and all computations of amounts and ratios referred to herein and in the other Loan Documents shall be made, without giving effect to (ia) any election under Statement of Financial Accounting Standards No. 159 (Codification 825-10 of Accounting Standards 825 10) (or any other Codification of Accounting Standards or Statement of Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary at “fair value,” and as defined therein, or (iib) any treatment of Indebtedness in respect of convertible debt instruments under Codification of Accounting Standards Codification 470-20 (or any other Codification of Accounting Standards Codification or Statement of Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII Section 5.3 shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentany Secured Party.
Appears in 2 contracts
Samples: Facility Agreement (Aytu Bioscience, Inc), Facility Agreement (Neos Therapeutics, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. No If, after the date hereof, any change occurs in GAAP or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of such provision, regardless of whether any Accounting Change Notice is given before or after such Accounting Change or in the application thereof, then the Administrative Agent and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Administrative Agent and Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (a) the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred and (b) Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios baskets and baskets which govern whether any action is permitted other requirements hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith by Borrower based on assumptions expressed therein and that were reasonable based on the information available to amend such ratio or requirement to preserve Borrower at the original intent thereof in light time of such change to GAAP (subject to the approval preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (IsoPlexis Corp), Credit Agreement (IsoPlexis Corp)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinIFRS, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrower or any of its Subsidiaries, including pursuant to a Change in Accounting Principles, shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, Agent Borrower and the Required Lenders Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP changes, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Restatement Date or entered into after the Restatement Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP, as in effect on the Restatement Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Restatement Date. From and after the occurrence of a Change in Accounting Principles, all references to “IFRS” in this Agreement shall be construed as references to “GAAP” as the context may require. From and after the occurrence of a Change in Accounting Principles, with respect to any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital lease, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
Appears in 2 contracts
Samples: Credit Agreement (Verano Holdings Corp.), Credit Agreement (Verano Holdings Corp.)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for the Borrower and its Subsidiaries, in each case without duplication. If the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in each case, occurring after the date of this Agreement, then the Lenders and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPor issuance. Notwithstanding any other provision contained hereinin this Agreement, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change to GAAP occurring before or after the Closing Date as a result of ASU 2016-02, Leases (iTopic 842) any election under issued by the Financial Accounting Standards Codification 825-10 (Board or any other proposals issued by the Financial Accounting Standard having a similar result or effect) to value Standards Board in connection therewith, in each case if such change would require treating any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 lease (or any other Accounting Standards Codification similar arrangement conveying the right to use) as a capital lease where such lease (or Financial Accounting Standard having a similar result or effectarrangement) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue was not required to be computed so treated under GAAP as in accordance with GAAP effect prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentchange.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty and Revenue Interest Financing Agreement (Impel Pharmaceuticals Inc), Credit Agreement (Impel Pharmaceuticals Inc)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If any change in GAAP results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, Agent and the Required Lenders agree to amend such provisions of this Agreement so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such change in GAAP as if such change had not been made; provided that no change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings or the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios unless (and baskets which govern whether any action is permitted hereunder unless until) the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless (and until) such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (GSE Holding, Inc.), First Lien Revolving Credit Agreement (GSE Holding, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAPIFRS. No If, after the date hereof, any change occurs in IFRS or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then the Administrative Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If the Administrative Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Effective Date or in the preparation application thereof on the operation of any financial statement hereafter adopted by Holdings shall be given effect for purposes such provision, regardless of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action Accounting Change Notice is permitted hereunder unless given before or after such Accounting Change or in the Borrowerapplication thereof, then the Administrative Agent and the Required Lenders Administrative Borrower agree that they will negotiate in good faith amendments to modify the provisions of this Agreement that are directly affected by such provisions Accounting Change with the intent of having the respective positions of the Administrative Agent and the Administrative Borrower after such Accounting Change conform as nearly as possible to reflect such changes in GAAP their respective positions as of the date of this Agreement and, unless until any such amendments have been agreed upon, (i) the provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder in this Agreement shall be provided together with calculated as if no such Accounting Change had occurred and (ii) the Administrative Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith to amend such ratio or requirement to preserve by the original intent thereof in light of such change to GAAP (subject Administrative Borrower based on assumptions expressed therein and that were reasonable based on the information available to the approval Administrative Borrower at the time of preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 2 contracts
Samples: Credit Agreement (Trinity Biotech PLC), Trinity Biotech PLC
Accounting Terms and Principles. All accounting terms not specifically or completely defined herein shall be construed, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Loan Agreement (including Section 8.01) shall be prepared by an Authorized Officer (a) All accounting determinations required prior to achieving Reporting Compliance, using such Authorized Officer’s good faith efforts to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance conformity with GAAP, and otherwise in conformity with past practice, in each case consistently applied and (b) after achieving Reporting Compliance, in conformity with GAAP, consistently applied, (in each case, except as otherwise specifically prescribed herein). No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement in each case, other than changes that occur in connection with the Borrower achieving Reporting Compliance to conform to GAAP unless the Borrower, the Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agentbe delivered to any Agent or any Lender. In addition, any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capitalized Lease in accordance with any change in GAAP. Notwithstanding anything to the contrary contained herein, all obligations of any Person that are or would have been treated as operating leases (including for avoidance of doubt, any network lease or any operating indefeasible right of use) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Lease Obligations in the financial statements to be delivered pursuant to Section 8.01.
Appears in 2 contracts
Samples: Loan Agreement (Mimedx Group, Inc.), Loan Agreement (Mimedx Group, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Partnership shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. For the avoidance of doubt and in accordance with the foregoing sentence, to the extent that a change in GAAP after the date hereof requires operating leases (as opposed to capital leases) to be treated as “indebtedness”, no such change in GAAP shall be given effect for any purposes under the Loan Agreement or any other Loan Documents, and Indebtedness hereunder shall not include any such obligations under operating leases solely as a result of such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 2 contracts
Samples: Credit Agreement (Rentech Nitrogen Partners, L.P.), Credit Agreement (Rentech Nitrogen Partners, L.P.)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect ; provided that, for purposes of measuring determining compliance with any provision covenant contained in Section 9 or the existence of Article VI any Default or VIIEvent of Default under Section 11, calculating the Applicable Margin or otherwise in determining any relevant ratios and baskets which govern whether any action lease is permitted hereunder unless required to be accounted for as a capital lease or an operating lease, such determination shall be made based on GAAP as in effect prior to the Borrowerissuance by the Financial Accounting Standards Board on February 25, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified2016 of Accounting Standards Update No. 2016-02. Unless otherwise expressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together with computed on a reconciliation between consolidated basis for the calculations Borrower and amounts set forth therein before and after giving effect to such change its Subsidiaries, in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, each case without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereofduplication. If at the Borrower requests an amendment to any time provision hereof to eliminate the effect of (a) any change in GAAP would affect or the computation application thereof or (b) the issuance of any financial ratio new accounting rule or requirement set forth guidance or in any Loan Documentthe application thereof, in either case, occurring after the date of this Agreement, then the Lenders and Borrower agree that they will negotiate in good faith amendments to the Borrower provisions of this Agreement that are directly affected by such change or issuance with the Agent shall so request, intent of having the Agent, respective positions of the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of after such change or issuance conform as nearly as possible to GAAP (subject to the approval their respective positions as of the Required Lenders); provided that date of this Agreement and, until so amended any such amendments have been agreed upon (i) such ratio or requirements the provisions in this Agreement shall continue to be computed in accordance with GAAP prior to calculated as if no such change thereto or issuance has occurred and (ii) the Borrower shall provide to the Agent Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation Lenders, between calculations of such ratio or requirement made any baskets and other requirements hereunder before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentor issuance.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (Oyster Point Pharma, Inc.), Credit Agreement and Guaranty (Oyster Point Pharma, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Financial Accounting Standards Board Accounting Standards Codification 825-10 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings the Borrower or its Restricted Subsidiaries any Subsidiary at “fair value” and ”, as defined therein, (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereofthereof and (iii) Accounting Standards Codification 842, Leases (or any other Accounting Standards Codification having similar result or effect) (and related interpretations) to the extent any lease (or similar arrangement) would be required to be treated as a capital lease thereunder where such lease (or arrangement) would have been treated as an operating lease under GAAP as in effect immediately prior to the effectiveness of such Accounting Standards Codification. If at any time any No change in GAAP would affect the computation accounting principles used in the preparation of any financial ratio or requirement set forth in statement hereafter adopted by any Loan DocumentParty or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of this Agreement or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower and the Required Lenders agree to modify such provisions to reflect such changes in GAAP, and the Borrower or the Agent shall so requestunless such provisions are modified, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders all financial statements and other similar documents required under this Agreement or as reasonably requested provided hereunder setting forth shall be provided together with a reconciliation between the calculations of such ratio or requirement made and amounts set forth therein before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 2 contracts
Samples: Facility Agreement (Intersect ENT, Inc.), Facility Agreement (Intersect ENT, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If any change in GAAP results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, Agent and the Required Lenders agree to amend such provisions of this Agreement so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such change in GAAP as if such change had not been made; provided that no change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings or the Borrower shall be given effect for purposes of measuring compliance with any provision of Section 1.12 or 1.14 or Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios unless (and baskets which govern whether any action is permitted hereunder unless until) the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless (and until) such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Section 1.12 or 1.14 or Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. Notwithstanding anything to the contrary contained herein, for purposes of determining pro forma compliance with each of the financial covenants in Sections 6.2 and 6.3 for any period prior to September 30, 2011, Holdings shall be required to be in compliance with the ratios otherwise required in respect of the Test Period ending September 30, 2011.
Appears in 1 contract
Samples: Credit Agreement (GSE Holding, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP; provided that notwithstanding the foregoing or anything to the contrary herein, all leases of the Borrower and its restricted subsidiaries that are treated as operating leases for purposes of GAAP on the Closing Date shall continue to be accounted for as operating leases regardless of any change in, or in the application of, GAAP following such date that would otherwise require such leases to be treated as capital leases. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (a) For purposes of determining pro forma compliance with any financial covenant as of any date prior to June 30, 2022, such provision shall assume that the relevant Test Period is the Test Period ending on March 31, 2022, and the level of any such financial covenant shall be deemed to be the covenant level for the Test Period ending March 31, 2022, and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage 181 ratio; provided that, to the extent the proceeds of any such Indebtedness are to be used to repay other Indebtedness, the foregoing shall not limit the Borrower’s ability to give Pro Forma Effect to such repayment of Indebtedness and all other appropriate pro forma adjustments. Notwithstanding anything to the contrary contained herein, any obligation of a Person under a lease that is not (or would not be) required to be classified and accounted for as a Capital Lease on a balance sheet of such Person under GAAP as in effect and implemented on June 26, 2019 shall not be treated as a Capital Lease as a result of the adoption of changes in GAAP or changes in the application of GAAP.
Appears in 1 contract
Samples: Credit Agreement (R1 RCM Inc. /DE)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. No If, after the date hereof, any change occurs in GAAP or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then Holdings will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If Holdings requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of such provision, regardless of whether any Accounting Change Notice is given before or after such Accounting Change or in the application thereof, then the Administrative Agent and Holdings agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Administrative Agent and Holdings after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (a) the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred and (b) Holdings shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios baskets and baskets which govern whether any action is permitted other requirements hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith by Holdings based on assumptions expressed therein and that were reasonable based on the information available to amend Holdings at the time of preparation of the Compliance Certificate setting forth such ratio calculations. Notwithstanding the foregoing, with respect to the accounting for leases as either operating leases or requirement to preserve Capital Leases and the original intent thereof in light impact of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed accounting in accordance with FASB ASC 842 on the definitions and covenants herein, GAAP as in effect prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations adoption of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII FASB ASC 842 shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentapplied.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAPGAAP in all material respects. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI IV or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder Article V unless the Borrower, Agent Borrower and the Required Lenders agree to modify such provisions to reflect such changes in GAAP GAAP; provided, that, notwithstanding any other provision of this Agreement, the Required Lenders’ agreement to any amendment of such provisions of Article IV or Article V shall be sufficient to bind all Lenders and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. For purposes of determining compliance with any covenant set forth in this Agreement, with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Indebtedness or Investment is incurred (so long as such Indebtedness of Investment, at the time incurred, made or acquired was permitted hereunder). Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IV or Article V shall be made, without giving effect to (i) any election under Statement of Financial Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP that treats leases that would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for as operating leases under GAAP as it exists on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, Closing Date as provided for abovecapitalized leases. A breach of a financial covenant contained in Article VII V shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentthe Lenders. [Balance of page intentionally left blank; signature pages follow.]
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials financial statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinApplicable Accounting Standards, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the BorrowerParent, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP Applicable Accounting Standards and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPApplicable Accounting Standards; provided that the Credit Parties may change their accounting method in accordance with Section 9.13. Notwithstanding any other provision contained herein, at all times when the Applicable Accounting Standard is GAAP, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any 29 Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII Financial Performance Covenant shall be deemed to have occurred as of any date of determination by Administrative Agent or Required Lenders as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under Applicable Accounting Standards as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, such Applicable Accounting Standards after the Closing Date. [Intentionally Omitted] .
Appears in 1 contract
Samples: Credit Agreement (TerrAscend Corp.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. Anything in this Agreement to the contrary notwithstanding, any obligations of a Person under a lease (whether existing now or entered into in the future) that is not (or would not be) required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as capital lease solely as a result of (x) the adoption of changes in or (y) changes in the application of GAAP after the Closing Date.
Appears in 1 contract
Accounting Terms and Principles. (a) All Prior to any Accounting Change, all accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAPIFRS. No If, after the date hereof, any change occurs in IFRS or in the application thereof or Borrower elects to change its accounting principles used from IFRS to GAAP (in each case, an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of such provision, regardless of whether any Accounting Change Notice is given before or after such Accounting Change or in the application thereof, then the Administrative Agent and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Administrative Agent and Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (a) the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred and (b) Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios baskets and baskets which govern whether any action is permitted other requirements hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith by Borrower based on assumptions expressed therein and that were reasonable based on the information available to amend such ratio or requirement to preserve Borrower at the original intent thereof in light time of such change to GAAP (subject to the approval preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statementscovenants and defined financial terms shall be computed on a consolidated basis for the Borrower and its Subsidiaries, Compliance Certificates and similar documents provided in each case without duplication. Notwithstanding anything to the contrary contained herein, (i) all financial statements delivered hereunder shall be provided together with a reconciliation between the calculations prepared, and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision all financial covenants contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be madecalculated, without giving effect to (i) any election under the Statement of Financial Accounting Standards Codification 825-10 No. 159 (or any other Financial Accounting Standard having similar accounting principle) permitting a similar result or effect) Person to value any its financial liabilities or Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “the fair value” value thereof and (ii) any treatment the financial statements delivered hereunder shall be prepared without giving effect to the implementation of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof606: Revenue from Contracts with Customers. If at the Borrower requests an amendment to any time provision hereof to eliminate the effect of (a) any change in GAAP would affect or the computation application thereof or (b) the issuance of any financial ratio new accounting rule or requirement set forth guidance or in any Loan Documentthe application thereof, and in each case, occurring after the Borrower or the Agent shall so requestdate of this Agreement, the Agent, then the Lenders and the Borrower shall agree that they will negotiate in good faith amendments to amend such ratio or requirement to preserve the original intent thereof in light provisions of this Agreement that are directly affected by such change to GAAP (subject to or issuance with the approval intent of having the respective positions of the Required Lenders); provided that Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until so amended any such amendments have been agreed upon, (i) such ratio or requirements the provisions in this Agreement shall continue to be computed in accordance with GAAP prior to calculated as if no such change thereto or issuance has occurred and (ii) the Borrower shall provide to the Agent Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation Lenders, between calculations of such ratio or requirement made any baskets and other requirements hereunder before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentor issuance.
Appears in 1 contract
Samples: Credit Agreement and Guaranty (scPharmaceuticals Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinIFRS, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or any of its Subsidiaries, including pursuant to a Change in Accounting Principles, shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, Agent Borrower and the Required Lenders Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP changes, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Restatement Date or entered into after the Restatement Date) that is not (or would not be) required to be classified and accounted for as a financing lease on the balance sheet of such Person under GAAP, as in effect on the Restatement Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Restatement Date. From and after the occurrence of a Change in Accounting Principles, all references to “IFRS” in this Agreement shall be construed as references to “GAAP” as the context may require. From and after the occurrence of a Change in Accounting Principles, with respect to any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a financing lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a financing lease, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. No If, after the date hereof, any change occurs in GAAP or in the accounting principles used application thereof and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Section 8 or 9 to be materially different than the amount that would be determined prior to such change, then Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Lenders in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of such provision, regardless of whether any Accounting Change Notice is given before or after such Accounting Change or in the application thereof, then the Lenders and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and Borrower after such Accounting Change conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred and (ii) Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between calculations of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios baskets and baskets which govern whether any action is permitted other requirements hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness Acquisition or other Liabilities investment consummated after the first day of Holdings or its Restricted Subsidiaries at “fair value” the applicable period of determination and (ii) any treatment prior to the end of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith by Borrower based on assumptions expressed therein and that were reasonable based on the information available to amend such ratio or requirement to preserve Borrower at the original intent thereof in light time of such change to GAAP (subject to the approval preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly GAAP, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise provided specifically prescribed herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, the Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as a Capital Lease solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, GAAP after the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (PARETEUM Corp)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 7 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for the Borrower and its Subsidiaries, in each case without duplication. If the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in either case, occurring after the Closing Date, then the Lenders and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders and the Borrower after such change or issuance conform as nearly as possible to their respective positions as of the Closing Date and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change or issuance. Notwithstanding anything herein to the contrary, for purposes of Section 7 hereof and any other negative covenant in GAAPthe Loan Documents (but not, for the avoidance of doubt any financial reporting obligations under the Loan Documents), with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with ASC 842 on the definitions and covenants contained herein, GAAP as in effect on December 31, 2018, shall be applied. Notwithstanding any other provision contained hereinherein or in any other Loan Document, all terms of an accounting or financial nature used herein and in the other Loan Documents shall be construed, and all computations of amounts and ratios referred to herein and in the other Loan Documents shall be made, without giving effect to (ia) any election under Statement of Financial Accounting Standards No. 159 (Codification of Accounting Standards 825-10 10) (or any other Codification of Accounting Standards or Statement of Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings the Borrower or its Restricted Subsidiaries any Subsidiary at “fair value” and ”, as defined therein, or (iib) any treatment of Indebtedness in respect of convertible debt instruments under Codification of Accounting Standards Codification 470-20 (or any other Codification of Accounting Standards Codification or Statement of Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Samples: Credit Agreement and Guaranty (NanoString Technologies Inc)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent Agents and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. For purposes of determining (i) the US Dollar Equivalent of any Revolving Loan and any other amount used in connection with the calculation of the Maximum US Revolving Loan Balance and the Maximum Canadian Revolving Loan Balance in connection with any proposed Borrowing (or upon any request for conversion or continuation of any Revolving Loan), shall be based upon the US Dollar Equivalent as in effect two (2) Business Days prior to such Borrowing, conversion or continuation, (ii) the US Dollar Equivalent of any Revolving Loan and any other amount used in connection with the calculation of the Maximum US Revolving Loan Balance and the Maximum Canadian Revolving Loan Balance in connection with any proposed issuance of a Letter of Credit (or upon any request for the amendment, renewal or extension thereof), shall be based upon the US Dollar Equivalent as in effect on the date of such issuance, amendment, renewal or extension, and (iii) compliance under each of Articles IV, V and VI, any amount in a currency other than US Dollars will be converted, on the last Business Day of each Fiscal Quarter or, more frequently as US Agent may require upon the occurrence and during the continuance of an Event of Default.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect ; provided that for purposes of measuring determining compliance with any provision covenant in Section 9 or the existence of Article VI any Default or VIIEvent of Default under Section 11, calculating the Applicable Margin in determining whether a lease is required to be accounted for as a capital lease or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borroweran operating lease, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder determination shall be provided together with a reconciliation between made based on GAAP as in effect on the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained hereindate of this Agreement; provided, further, that all terms of an accounting or financial nature used herein (including the definitions of Capital Lease Obligations and Indebtedness) shall be construed, and all computations of amounts and ratios referred to herein shall be made, construed without giving effect to (i) the effects of Accounting Standards Codification 815—Derivatives and Hedging and related interpretations to the extent such effects would otherwise increase or decrease an amount of indebtedness for any 164703839 v7 purpose as a result of accounting for any embedded derivatives created by the terms of such indebtedness, (ii) any election under Accounting Standards Codification 825800-10 00-00 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings the Borrower or its Restricted Subsidiaries any Subsidiary at “fair value,” as defined therein and (iiiii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at All components of financial calculations made to determine compliance with this Agreement, including Section 10, shall be adjusted to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any time any change in GAAP would affect Acquisition consummated after the computation first day of any financial ratio or requirement set forth in any Loan Documentthe applicable period of determination and prior to the end of such period, and as if such Acquisition had occurred on the Borrower or first day of the Agent shall so requestapplicable period, the Agent, the Lenders and the Borrower shall negotiate as determined in good faith by Borrower based on assumptions expressed therein and that were reasonable based on the information available to amend such ratio or requirement to preserve Borrower at the original intent thereof in light time of such change to GAAP (subject to the approval preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinIFRS, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrower or any of its Subsidiaries, including pursuant to a Change in Accounting Principles, shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, Agent Borrower and the Required Lenders Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP changes, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Restatement Date or entered into after the Restatement Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP, as in effect on the Restatement Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Restatement Date. From and after the occurrence of a Change in Accounting Principles, all references to “IFRS” in this Agreement shall be construed as references to “GAAP” as the context may require. From and after the occurrence of a Change in Accounting Principles, with respect to any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital lease, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
Appears in 1 contract
Samples: Credit Agreement
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrowers and their respective Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for the Borrower and its Subsidiaries, in each case without duplication. If the Borrower requests an amendment to any provision -34- 4882-5123-79004861-6868-3896 v.123 hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in each case, occurring after the date of this Agreement, then the Lenders and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPor issuance. Notwithstanding any other provision contained hereinin this Agreement, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change to GAAP occurring before or after the Closing Date as a result of ASU 2016-02, Leases (iTopic 842) any election under issued by the Financial Accounting Standards Codification 825-10 (Board or any other proposals issued by the Financial Accounting Standard having a similar result or effect) to value Standards Board in connection therewith, in each case if such change would require treating any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 lease (or any other Accounting Standards Codification similar arrangement conveying the right to use) as a capital lease where such lease (or Financial Accounting Standard having a similar result or effectarrangement) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue was not required to be computed so treated under GAAP as in accordance with GAAP effect prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentchange.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation All components of any financial statement hereafter adopted by Holdings calculations made to determine compliance with this Agreement, including Section 10 shall be given effect calculated as if any (a) Acquisition, (b) Asset Sale, (c) Involuntary Disposition, (d) sale, transfer or other disposition that results in a Person ceasing to be a Subsidiary, (e) Investment that results in a Person becoming a Subsidiary (whether by merger, consolidation or otherwise), (f) incurrence or repayment of Indebtedness (and if any such incurred Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of measuring this provision determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination) or (g) other event that by the terms of the Loan Documents requires pro forma compliance with any provision a test or covenant, calculation as to pro forma effect with respect to a test or covenant or requires such test or covenant to be calculated on a pro forma basis, in each case, consummated after the first day of Article VI or VIIthe applicable period of determination and prior to the end of such period, calculating the Applicable Margin or otherwise determining any relevant ratios as if such transaction (and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein such transactions in connection therewith) shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last first day of the applicable period and additionally: (i) with respect to any specified measurement periodAsset Sale, regardless Involuntary Disposition or sale, transfer or other disposition that results in a Person ceasing to be a Subsidiary, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property disposed of when shall be excluded, and (ii) with respect to any Acquisition or Investment, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by financial statements reflecting or other information reasonably satisfactory to Administrative Agent; provided, that, the foregoing adjustments shall be determined in good faith by Borrower based on assumptions expressed therein and that were reasonable based on the information available to Borrower at the time of preparation of the Compliance Certificate setting forth such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Loan Agreement shall be prepared in conformity with, unless expressly Applicable Accounting Standards, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise provided specifically prescribed herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Spark or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement unless Spark, the Borrower, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP Applicable Accounting Standards and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPApplicable Accounting Standards. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agentbe delivered to any Agent or any Lender. In addition, (i) any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capitalized Lease in accordance with any change in Applicable Accounting Standards, and (ii) any real property or real estate lease shall be not be deemed to be a Capitalized Lease.
Appears in 1 contract
Samples: Loan Agreement (Spark Networks SE)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (a) For 154 purposes of determining pro forma compliance with any financial covenant as of any date prior to the first date on which such financial covenant is to be tested hereunder, the level of any such financial covenant shall be deemed to be the covenant level for such first test date and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness, shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage ratio.
Appears in 1 contract
Accounting Terms and Principles. (a) All Except as set forth below, all accounting terms not specifically defined herein shall be construed in conformity with GAAP and all accounting determinations required to be made pursuant hereto (including for purpose of measuring compliance with Section 6.01 shall, unless expressly otherwise provided herein, be made in accordance conformity with GAAP. No (b) If any change in the accounting principles used in the preparation of the most recent financial statements referred to in Section 6.02(a) is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any financial statement hereafter successors thereto) and such change is adopted by Holdings shall be given effect Livent with the agreement of the Livent’s Accountants and results in a change in any of the calculations required by Article V (Representations and Warranties or Section 6.01 had such accounting change not occurred, for purposes of measuring compliance with any provision the calculation of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent such covenants and the Required Lenders agree to modify definitions related thereto, such provisions to reflect such changes calculation shall be made using GAAP as used by each Borrower in GAAP andits December 31, unless such provisions are modified, all 2021 financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. (c) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, construed and all computations of amounts and ratios referred to herein in Article VI (Covenants of the Company) shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Borrower or any of its respective Restricted Subsidiaries at “fair value”. (d) Notwithstanding anything to the contrary contained in this Section 1.03 or in the definitions of “Capital Lease Obligations” and or “Capital Lease,” in the event of an accounting change requiring all leases to be capitalized, only those leases (iiassuming for purposes hereof that such leases were in existence on the date hereof) any treatment of Indebtedness that would constitute Capital Leases in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described thereinconformity with GAAP on the date hereof shall be considered Capital Leases, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, calculations and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required deliverables under this Agreement or any other Loan Document shall be made or delivered, as reasonably requested hereunder setting forth applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a reconciliation between calculations of schedule showing the adjustments necessary to reconcile such ratio or requirement made before and after giving financial statements with GAAP as in effect immediately prior to such change in GAAPaccounting change). Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to AgentSECTION 1.04.
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrowers shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. Anything in this Agreement to the contrary notwithstanding, any obligations of a Person under a lease (whether existing now or entered into in the future) that is not (or would not be) required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP as in effect at the time such lease is entered into shall not be treated as capital lease solely as a result of (x) the adoption of changes in or (y) changes in the application of GAAP after such lease is entered into.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP; provided that notwithstanding the foregoing or anything to the contrary herein, all leases of the Borrower and its restricted subsidiaries that are treated as operating leases for purposes of GAAP on the Closing Date shall continue to be accounted for as operating leases regardless of any change in, or in the application of, GAAP following such date that would otherwise require such leases to be treated as capital leases. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (a) For purposes of determining pro forma compliance with any financial covenant as of any date prior to September 30, 2019, such provision shall assume that the relevant Test Period is the Test Period ending on September 30, 2019, and the level of any such financial covenant shall be deemed to be the covenant level for the Test Period ending September 30, 2019, and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage ratio; provided that, to the extent the proceeds of any such Indebtedness are to be used to repay other Indebtedness, the foregoing shall not limit the Borrower’s 178 ability to give Pro Forma Effect to such repayment of Indebtedness and all other appropriate pro forma adjustments. Notwithstanding anything to the contrary contained herein, any obligation of a Person under a lease that is not (or would not be) required to be classified and accounted for as a Capital Lease on a balance sheet of such Person under GAAP as in effect and implemented on the Closing Date shall not be treated as a Capital Lease as a result of the adoption of changes in GAAP or changes in the application of GAAP.
Appears in 1 contract
Samples: Credit Agreement (R1 RCM Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP; provided that notwithstanding the foregoing or anything to the contrary herein, all leases of the Borrower and its restricted subsidiaries that are treated as operating leases for purposes of GAAP on the Closing Date shall continue to be accounted for as operating leases regardless of any change in, or in the application of, GAAP following such date that would otherwise require such leases to be treated as capital leases. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (a) For purposes of determining pro forma compliance with any financial covenant as of any date prior to June 30, 2022, such provision shall assume that the relevant Test Period is the Test Period ending on March 31, 2022, and the level of any such financial covenant shall be deemed to be the covenant level for the Test Period ending March 31, 2022, and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage ratio; provided that, to the extent the proceeds of any such Indebtedness are to be used to repay other Indebtedness, the foregoing shall not limit the Borrower’s ability to give Pro Forma Effect to such repayment of Indebtedness and all other appropriate pro forma adjustments. Notwithstanding anything to the contrary contained herein, any obligation of a Person under a lease that is not (or would not be) required to be classified and accounted for as a Capital Lease on a balance sheet of such Person under GAAP as in effect and implemented on June 26, 2019 shall not be treated as a Capital Lease as a result of the adoption of changes in GAAP or changes in the application of GAAP.
Appears in 1 contract
Samples: Credit Agreement (R1 RCM Inc. /DE)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If any change in GAAP results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, Agent and the Required Lenders agree to amend such provisions of this Agreement so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such change in GAAP as if such change had not been made; provided that no change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings or the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios unless (and baskets which govern whether any action is permitted hereunder unless until) the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless (and until) such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.. 100
Appears in 1 contract
Samples: Credit Agreement (GSE Holding, Inc.)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together with computed on a reconciliation between consolidated basis for the calculations Borrower and amounts set forth therein before and after giving effect to such change its Subsidiaries, in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, each case without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereofduplication. If at the Borrower requests an amendment to any time provision hereof to eliminate the effect of (a) any change in GAAP would affect or the computation application thereof or (b) the issuance of any financial ratio new accounting rule or requirement set forth guidance or in any Loan Documentthe application thereof, and in each case, occurring after the Borrower or the Agent shall so requestdate of this Agreement, the Agent, then the Lenders and the Borrower shall agree that they will negotiate in good faith amendments to amend such ratio or requirement to preserve the original intent thereof in light provisions of this Agreement that are directly affected by such change to GAAP (subject to or issuance with the approval intent of having the respective positions of the Required Lenders); provided that Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until so amended any such amendments have been agreed upon, (i) such ratio or requirements the provisions in this Agreement shall continue to be computed in accordance with GAAP prior to calculated as if no such change thereto or issuance has occurred and (ii) the Borrower shall provide to the Agent Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation Lenders, between calculations of such ratio or requirement made any baskets and other requirements hereunder before and after giving effect to such change in GAAPor issuance. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all For purposes of this Agreementthe definition of Indebtedness and related covenants, notwithstanding GAAP will be deemed to treat any operating lease as an operating lease and not a capital lease, regardless of any change in GAAP relating theretoas a result of ASU 2016-02, unless Leases (Topic 842) by the parties hereto shall enter into a mutually acceptable amendment addressing Financial Accounting Standards Board to the extent such changesoperating lease was so treated under GAAP as in effect for any fiscal year of Borrower beginning before December 15, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent2018.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrowers or the Guarantors shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder V unless the Borrower, Agent Borrowers and the Required Lenders Lender agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financial statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Borrower or its Restricted Subsidiaries any Subsidiary of such Borrower at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described thereinFor purposes hereof, and such Indebtedness shall at all times be valued at not include any leases on the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required balance sheet defined as Operating Lease Liabilities under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, FASB ASU 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent-02.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Loan Agreement after the Initial Accounting Termination Date shall be prepared in conformity with, unless expressly GAAP, consistently applied, except as otherwise provided specifically prescribed herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement unless the Borrower, Agent Borrower and the Required Lenders Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein or in any other Loan Document (including any Compliance Certificate) shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 or (ii) Accounting Standards Codifications 470-20 or 835-30 (or, in the case of clauses (i) and (ii), any other Financial Accounting Standard having a similar result or effect) effect similar to any such standard), to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at standard that does not reflect 100% of the full stated outstanding principal amount thereof. If at thereof without deducting any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for abovedebt issuance costs. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agentbe delivered to any Agent or any Lender. In addition, any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capital Lease in accordance with any change in GAAP.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If any change in GAAP (including International Financial Reporting Standards) results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, the Agent and the Required Lenders agree to negotiate in good faith to amend such provisions of this Agreement so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluation of the Borrower’s financial condition shall be the same after such change in GAAP as if such change had not been made; provided that no change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” In addition, the financial ratios and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement related definitions set forth in any the Loan DocumentDocuments shall be computed to exclude the application of FAS 133, and the Borrower FAS 150 or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP FAS 123r (subject to the approval of extent that the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed pronouncements in accordance with GAAP prior to such change thereto and (ii) FAS 123r result in recording an equity award as a liability on the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements Consolidated balance sheet of Holdings and its Subsidiaries dated December 31in the circumstance where, 2016but for the application of the pronouncements, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, award would have been classified as provided for aboveequity). A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for Parent and its Subsidiaries, in each case without duplication. If Parent or the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in either case, occurring after the Closing Date, then the Lenders, Parent and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders, Parent and the Borrower after such change or issuance conform as nearly as possible to their respective positions as of the Closing Date and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) Parent and the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAP. or issuance.. Notwithstanding anything herein to the contrary, for purposes of Section 9 hereof and any other provision negative covenant in the Loan Documents (but not, for the avoidance of doubt any financial reporting obligations under the Loan Documents), with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 842 on the definitions and covenants contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving GAAP as in effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 20162018, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentapplied.
Appears in 1 contract
Samples: Credit Agreement and Guaranty (Xeris Biopharma Holdings, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings any Credit Party shall be given effect for purposes of measuring compliance with any provision of Article V or Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios 121 referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent: (a) For purposes of determining pro forma compliance with any financial covenant as of any date prior to the first date on which such financial covenant is to be tested hereunder, the level of any such financial covenant shall be deemed to be the covenant level for such first test date and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness, shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage ratio.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinGAAP, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings any Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios in this Agreement unless Borrowers and baskets which govern whether any action is permitted hereunder unless the Borrower, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP changes, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Administrative Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a financing lease on the balance sheet of such Person under GAAP, as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Closing Date. With respect to any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a financing lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a financing lease, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No If any change in GAAP results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, Agent and the Required Lenders agree to amend such provisions of this Agreement so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such change in GAAP as if such change had not been made; provided that no change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings or the Borrower shall be given effect for purposes of measuring compliance with any provision of Section 1.12 or Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios unless (and baskets which govern whether any action is permitted hereunder unless until) the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless (and until) such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Section 1.12 or Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. Notwithstanding anything to the contrary contained herein, for purposes of determining pro forma compliance with each of the financial covenants in Sections 6.2 and 6.3 for any period prior to September 30, 2011, Holdings shall be required to be in compliance with the ratios otherwise required in respect of the Test Period ending September 30, 2011.
Appears in 1 contract
Samples: Credit Agreement (GSE Holding, Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinIFRS, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or any of its Subsidiaries, including pursuant to a Change in Accounting Principles, shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, Agent Borrower and the Required Lenders Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP changes, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Restatement Date or entered into after the Restatement Date) that is not (or would not be) required to be classified and accounted for as a financing lease on the balance sheet of such Person under GAAP, as in effect on the Restatement Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Restatement Date. From and after the occurrence of a Change in Accounting Principles, all references to “IFRS” in this Agreement shall be construed as references to “GAAP” as the context may require. From and after the occurrence of a Change in Accounting Principles, with respect to any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a financing lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a financing lease, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.
Appears in 1 contract
Samples: Credit Agreement
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. No If, after the date hereof, any change occurs in GAAP or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then the Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of any financial statement hereafter adopted by Holdings shall be given effect for purposes such provision, regardless of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action Accounting Change Notice is permitted hereunder unless given before or after such Accounting Change or in the Borrowerapplication thereof, then the Administrative Agent and the Required Lenders Borrower agree that they will negotiate in good faith amendments to modify the provisions of this Agreement that are directly affected by such provisions Accounting Change with the intent of having the respective positions of the Administrative Agent and the Borrower after such Accounting Change conform as nearly as possible to reflect such changes in GAAP their respective positions as of the date of this Agreement and, unless until any such amendments have been agreed upon, (a) the provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder in this Agreement shall be provided together with calculated as if no such Accounting Change had occurred and (b) the Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between the calculations of any ‑32‑ baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith to amend such ratio or requirement to preserve by the original intent thereof in light of such change to GAAP (subject Borrower based on assumptions expressed therein and that were reasonable based on the information available to the approval Borrower at the time of preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All Except as set forth below, all accounting terms not specifically defined herein shall be construed in conformity with GAAP and all accounting determinations required to be made pursuant hereto (including for purpose of measuring compliance with Section 6.01 shall, unless expressly otherwise provided herein, be made in accordance conformity with GAAP. No (b) If any change in the accounting principles used in the preparation of the most recent financial statements referred to in Section 6.02(a) is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any financial statement hereafter successors thereto) and such change is adopted by Holdings shall be given effect Livent with the agreement of the Livent’s Accountants and results in a change in any of the calculations required by Article V (Representations and Warranties or Section 6.01 had such accounting change not occurred, for purposes of measuring compliance with any provision the calculation of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent such covenants and the Required Lenders agree to modify definitions related thereto, such provisions to reflect such changes calculation shall be made using GAAP as used by each Borrower in GAAP andits December 31, unless such provisions are modified, all 2017 financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. (c) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, construed and all computations of amounts and ratios referred to herein in Article VI (Covenants of the Company) shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Borrower or any of its respective Restricted Subsidiaries at “fair value”. (d) Notwithstanding anything to the contrary contained in this Section 1.03 or in the definitions of “Capital Lease Obligations” and or “Capital Lease,” in the event of an accounting change requiring all leases to be capitalized, only those leases (iiassuming for purposes hereof that such leases were in existence on the date hereof) any treatment of Indebtedness that would constitute Capital Leases in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described thereinconformity with GAAP on the date hereof shall be considered Capital Leases, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, calculations and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required deliverables under this Agreement or any other Loan Document shall be made or delivered, as reasonably requested hereunder setting forth applicable, in accordance therewith (provided, that together with all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of any such accounting change, the Borrowers shall deliver a reconciliation between calculations of schedule showing the adjustments necessary to reconcile such ratio or requirement made before and after giving financial statements with GAAP as in effect immediately prior to such change in GAAPaccounting change). Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.41 -
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings any Borrower shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (ix) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (iiy) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect thereof and(ii) for purposes of determining compliance with the computation of any financial ratio or requirement set forth in any Loan Documentcovenants and negative covenants and, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light for purposes of such change to GAAP covenants, any related definitions herein (subject to but, for the approval avoidance of doubt, not any covenants or obligations in respect of the Required Lenderspreparation or provision of financial statements hereunder); provided , any obligations of a Person that until so amended (i) such ratio or requirements shall continue to be computed would have been treated as operating leases in accordance with GAAP prior to such change thereto Accounting Standards Codification 840 (regardless of whether or not then in effect) shall be treated as operating leases for purposes of all financial definitions, calculations and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after covenants, without giving effect to such change Accounting Standards Codification 842 or any subsequent changes in GAAP (or the required implementation of any previously promulgated changes in GAAP. Without limiting ) relating to the foregoing, treatment of a lease as an operating lease or capitalized lease or requiring operating leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all recharacterized or treated as capital leases. (b) For purposes of this Agreementcalculating Default Rate interest, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (c) For purposes of determining pro forma compliance with any financial covenant as of any date prior to the first date on which such financial covenant is to be tested hereunder, the level of any such financial covenant shall be deemed to be the covenant level for such first test date. (d) If the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness, shall not be included in the calculation, if applicable, of cash or Cash Equivalents included in the determination of such leverage ratio.
Appears in 1 contract
Samples: Credit Agreement (Phreesia, Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Loan Agreement shall be prepared in conformity with, unless expressly GAAP, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise provided specifically prescribed herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement unless the Borrower, the Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agentbe delivered to any Agent or any Lender. In addition, any lease which would have been treated as an operating lease on or prior to December 31, 2018 shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capitalized Lease Obligations in accordance with any change in GAAP (or the implementation thereof).
Appears in 1 contract
Samples: Loan Agreement (Phi Inc)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinGAAP, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the Borrower, Agent Borrower and the Required Lenders Administrative Agent agree in writing to modify such provisions to reflect such changes in GAAP GAAP, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under GAAP, as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of GAAP, after the Closing Date.
Appears in 1 contract
Samples: Credit Agreement
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent Issuer and the Required Lenders Purchasers agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair Table of Contents value.” and (ii) For purposes of determining pro forma compliance with any treatment financial covenant in connection with any “incurrence” test as of Indebtedness in respect any date prior to the first date on which such financial covenant is to be tested hereunder, the level of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as be the covenant level for such first test date. If the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the last day purposes of any specified measurement perioddetermining such availability or compliance, regardless the cash proceeds of when such Indebtedness, shall not be included in the financial statements reflecting calculation, if applicable, of cash or Cash Equivalents included in the determination of such breach are delivered to Agentleverage ratio.
Appears in 1 contract
Samples: Note Purchase Agreement (Spinal Elements Holdings, Inc.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAPIFRS. No If, after the date hereof, any change occurs in IFRS or in the accounting principles used application thereof (an “Accounting Change”) and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or 9 to be materially different than the amount that would be determined prior to such change, then the Administrative Borrower will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next required delivery of financial statements pursuant to Section 8.01. If the Administrative Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the preparation application thereof on the operation of any financial statement hereafter adopted by Holdings shall be given effect for purposes such provision, regardless of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action Accounting Change Notice is permitted hereunder unless given before or after such Accounting Change or in the Borrowerapplication thereof, then the Administrative Agent and the Required Lenders Administrative Borrower agree that they will negotiate in good faith amendments to modify the provisions of this Agreement that are directly affected by such provisions Accounting Change with the intent of having the respective positions of the Administrative Agent and the Administrative Borrower after such Accounting Change conform as nearly as possible to reflect such changes in GAAP their respective positions as of the date of this Agreement and, unless until any such amendments have been agreed upon, (i) the provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder in this Agreement shall be provided together with calculated as if no such Accounting Change had occurred and (ii) the Administrative Borrower shall provide to the Administrative Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPAccounting Change. Notwithstanding any other provision contained herein, all terms All components of an accounting or financial nature used herein calculations made to determine compliance with this Agreement shall be construedadjusted to include or exclude, and all computations of amounts and ratios referred to herein shall be madeas the case may be, without giving effect duplication, such components of such calculations attributable to (i) any election under Accounting Standards Codification 825-10 (Acquisition or any other Financial Accounting Standard having a similar result or effect) disposition of assets consummated after the first day of the applicable period of determination and prior to value any Indebtedness or other Liabilities the end of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner period, as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate determined in good faith to amend such ratio or requirement to preserve by the original intent thereof in light of such change to GAAP (subject Administrative Borrower based on assumptions expressed therein and that were reasonable based on the information available to the approval Administrative Borrower at the time of preparation of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder Compliance Certificate setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for the Borrower and its Subsidiaries, in each case without duplication. If the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in each case, occurring after the date of this Agreement, then the Lenders and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change in GAAPor issuance. Notwithstanding any other provision contained herein, (1) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Financial Accounting Standards Board Accounting Standards Codification 825-10 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Obligors or its Restricted any of their respective Subsidiaries at “fair value,” as defined therein and (ii2) any unless the Borrower has requested an amendment pursuant to the second paragraph of the definition of “GAAP” with respect to the treatment of Indebtedness in respect operating leases and capitalized lease obligations under GAAP and until such amendment has become effective, all obligations of convertible debt instruments under any Person that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards Codification 470-20 (or any other Board on February 25, 2016 of an Accounting Standards Codification or Financial Accounting Standard having a similar result or effectUpdate (the “ASU”) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with GAAP prior to such change thereto and the ASU (iion a prospective or retroactive basis or otherwise) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected treated as Capital Lease Obligations in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are to be delivered pursuant to AgentSection 8.01.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation All components of any financial statement hereafter adopted by Holdings calculations made to determine compliance with this Agreement, including Section 10, shall be given effect calculated as if any (a) Acquisition, (b) Asset Sale, (c) Involuntary Disposition, (d) sale, transfer or other disposition that results in a Person ceasing to be a Subsidiary, (e) Investment that results in a Person becoming a Subsidiary (whether by merger, consolidation or otherwise), (f) incurrence or repayment of Indebtedness (and if any such incurred Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of measuring this provision determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination) or (g) other event that by the terms of the Loan Documents requires pro forma compliance with any provision a test or covenant, calculation as to pro forma effect with respect to a test or covenant or requires such test or covenant to be calculated on a pro forma basis, in each case, consummated after the first day of Article VI or VIIthe applicable period of determination and prior to the end of such period, calculating the Applicable Margin or otherwise determining any relevant ratios as if such transaction (and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein such transactions in connection therewith) shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last first day of the applicable period and additionally: (i) with respect to any specified measurement periodAsset Sale, regardless Involuntary Disposition or sale, transfer or other disposition that results in a Person ceasing to be a Subsidiary, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property disposed of when shall be excluded, and (ii) with respect to any Acquisition or Investment, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by financial statements reflecting or other information reasonably satisfactory to Administrative Agent; provided, that, the foregoing adjustments shall be determined in good faith by Borrower based on assumptions expressed therein and that were reasonable based on the information available to Borrower at the time of preparation of the Compliance Certificate setting forth such breach are delivered to Agentcalculations.
Appears in 1 contract
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together with computed on a reconciliation between consolidated basis for the calculations Borrower and amounts set forth therein before and after giving effect to such change its Subsidiaries, in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, each case without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings or its Restricted Subsidiaries at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereofduplication. If at the Borrower requests an amendment to any time provision hereof to eliminate the effect of (a) any change in GAAP would affect or the computation application thereof or (b) the issuance of any financial ratio new accounting rule or requirement set forth guidance or in any Loan Documentthe application thereof, and in each case, occurring after the Borrower or the Agent shall so requestdate of this Agreement, the Agent, then the Lenders and the Borrower shall agree that they will negotiate in good faith amendments to amend such ratio or requirement to preserve the original intent thereof in light provisions of this Agreement that are directly affected by such change to GAAP (subject to or issuance with the approval intent of having the respective positions of the Required Lenders); provided that Lenders and Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and, until so amended any such amendments have been agreed upon, (i) such ratio or requirements the provisions in this Agreement shall continue to be computed in accordance with GAAP prior to calculated as if no such change thereto or issuance has occurred and (ii) the Borrower shall provide to the Agent Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation Lenders, between calculations of such ratio or requirement made any baskets and other requirements hereunder before and after giving effect to such change in GAAPor issuance. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all For purposes of this Agreementthe definition of Indebtedness and related covenants, notwithstanding GAAP will be deemed to treat any operating lease as an operating lease and not a capital lease, regardless of any change in GAAP relating theretoas a result of ASU 2016-02, unless Leases (Topic 842) by the parties hereto shall enter into a mutually acceptable amendment addressing Financial Accounting Standards Board to the extent such changesoperating lease was so treated under GAAP as in effect for any fiscal year of Borrower beginning before December 15, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent2018.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinApplicable Accounting Standards, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the BorrowerParent, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP Applicable Accounting Standards and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPApplicable Accounting Standards; provided that the Credit Parties may change their accounting method 40 21029590V.1 in accordance with Section 9.13. Notwithstanding any other provision contained herein, at all times when the Applicable Accounting Standard is GAAP, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII Financial Performance Covenant shall be deemed to have occurred as of any date of determination by Administrative Agent or Required Lenders as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under Applicable Accounting Standards as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, such Applicable Accounting Standards after the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (TerrAscend Corp.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. For purposes of determining compliance with any provision of this Agreement, the determination of whether a lease is to be treated as an operating lease or a capital lease shall be made without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of proposed Accounting Standards Update (ASU) Leases (Topic 840) issued August 17, 2010, or any successor proposal. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Samples: Credit Agreement (Affymetrix Inc)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial calculations) required to be made submitted pursuant hereto shallto this Agreement shall be prepared in conformity with, unless expressly otherwise provided hereinApplicable Accounting Standards, be made applied in accordance with GAAPa consistent manner. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Parent or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Agreement unless the BorrowerParent, Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP Applicable Accounting Standards and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPApplicable Accounting Standards; provided that the Credit Parties may change their accounting method 21029590V.1 in accordance with Section 9.13. Notwithstanding any other provision contained herein, at all times when the Applicable Accounting Standard is GAAP, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII Financial Performance Covenant shall be deemed to have occurred as of any date of determination by Administrative Agent or Required Lenders as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to any Agent. Anything in this Agreement to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a capital lease on the balance sheet of such Person under Applicable Accounting Standards as in effect on the Closing Date shall not be treated as a Capitalized Lease Obligation solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, such Applicable Accounting Standards after the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (TerrAscend Corp.)
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings any Credit Party shall be given effect for purposes of measuring compliance with any provision of Article VI V or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder VII unless the Borrower, the Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VII shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments Any lease that was treated as an operating lease under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued GAAP at the full stated principal amount thereof. If at any time any it was entered into that later becomes a capital lease as a result of a change in GAAP would affect during the computation life of such lease, including any financial ratio or requirement set forth in any Loan Documentrenewals, and any lease entered into after the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light date of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or that would have been considered an operating lease under the provisions of GAAP in effect as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, in each case, shall be treated as an operating lease for all purposes of under this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of any date of determination by the Administrative Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to the Administrative Agent.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings Partnership shall be given effect for purposes of measuring compliance with any provision of Article V or Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the BorrowerBorrowers, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. For the avoidance of doubt and in accordance with the foregoing sentence, to the extent that a change in GAAP after the date hereof requires operating leases (as opposed to capital leases) to be treated as “indebtedness”, no such change in GAAP shall be given effect for any purposes under the Loan Agreement or any other Loan Documents, and Indebtedness hereunder shall not include any such obligations under operating leases solely as a result of such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles or in the application thereof, in each case, used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP or changes in the application thereof and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPGAAP or such change in the application thereof. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value” and ”, (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (iiiii) the Borrower shall provide to the Agent effects of Accounting Standards Codification 842 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) on capital lease and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for abovedebt obligations. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Samples: Credit Agreement (Iteris, Inc.)
Accounting Terms and Principles. (a) All accounting determinations terms not specifically or completely defined herein shall be construed, and all financial data (including financial ratios and other financial calculations) required to be made submitted pursuant hereto shallto this Loan Agreement (including Section 8.01) shall be prepared by an Authorized Officer, unless expressly otherwise provided herein, be made in accordance conformity with GAAP, consistently applied, (in each case, except as otherwise specifically prescribed herein). No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article VI or VIIIX, calculating the Applicable Margin including Section 9.13, or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder in this Loan Agreement in each case, unless the Borrower, the Administrative Agent and the Required Lenders agree in writing to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAPchange. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article IX shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above”. A breach of a financial covenant contained in Article VII IX shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered or required to Agentbe delivered to any Agent or any Lender. In addition, any lease treated as an operating lease on the date it is entered into shall continue to be treated as an operating lease during the term of this Loan Agreement notwithstanding a change in the treatment thereof to a Capitalized Lease in accordance with any change in GAAP. Notwithstanding anything to the contrary contained herein, all obligations of any Person that are or would have been treated as operating leases (including for avoidance of doubt, any network lease or any operating indefeasible right of use) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”“) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Loan Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as Capital Lease Obligations in the financial statements to be delivered pursuant to Section 8.01.
Appears in 1 contract
Samples: Loan Agreement (Mimedx Group, Inc.)
Accounting Terms and Principles. (a) All Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations required to and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made pursuant hereto shallmade, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings shall be given effect for purposes of measuring compliance with any provision of Article VI or VII, calculating the Applicable Margin or Unless otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modifiedexpressly provided, all financial statements, Compliance Certificates covenants and similar documents provided hereunder defined financial terms shall be provided together computed on a consolidated basis for the Borrower and its Subsidiaries, in each case without duplication. If the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in either case, occurring after the Closing Date, then the Lenders and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders and the Borrower after such change or issuance conform as nearly as possible to their respective positions as of the Closing Date and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between the calculations of any baskets and amounts set forth therein other requirements hereunder before and after giving effect to such change or issuance. Notwithstanding anything herein to the contrary, for purposes of Section 9 hereof and any other negative covenant in GAAPthe Loan Documents (but not, for the avoidance of doubt any financial reporting obligations under the Loan Documents), with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with ASC 842 on the definitions and covenants contained herein, GAAP as in effect on December 31, 2018, shall be applied. Notwithstanding any other provision contained hereinherein or in any other Loan Document, all terms of an accounting or financial nature used herein and in the other Loan Documents shall be construed, and all computations of amounts and ratios referred to herein and in the other Loan Documents shall be made, without giving effect to (ia) any election under Statement of Financial Accounting Standards No. 159 (Codification of Accounting Standards 825-10 10) (or any other Codification of Accounting Standards or Statement of Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings the Borrower or its Restricted Subsidiaries any Subsidiary at “fair value” and ”, as defined therein, or (iib) any treatment of Indebtedness in respect of convertible debt instruments under Codification of Accounting Standards Codification 470-20 (or any other Codification of Accounting Standards Codification or Statement of Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.
Appears in 1 contract
Accounting Terms and Principles. (a) All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement hereafter adopted by Holdings the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP; provided that notwithstanding the foregoing or anything to the contrary herein, all leases of the Borrower and its restricted subsidiaries that are treated as operating leases for purposes of GAAP on the Closing Date shall continue to be accounted for as operating leases regardless of any change in, or in the application of, GAAP following such date that would otherwise require such leases to be treated as capital leases. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article V and Article VI shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities of Holdings any Credit Party or its Restricted Subsidiaries any Subsidiary of any Credit Party at “fair value.” and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent. (a) For purposes of determining pro forma compliance with any financial covenant as 181 US-DOCS\99983253.20 of any date prior to September 30, 2018, such provision shall assume that the relevant Test Period is the Test Period ending on September 30, 2018, and the level of any such financial covenant shall be deemed to be the covenant level for the Test Period ending September 30, 2018, and (b) if the availability of Indebtedness under this Agreement, or other incurrence of Indebtedness in compliance with this Agreement, is subject to a maximum leverage ratio, then, solely for the purposes of determining such availability or compliance, the cash proceeds of such Indebtedness shall not be included in the calculation, if applicable, of cash or cash equivalents included in the determination of such leverage ratio; provided that, to the extent the proceeds of any such Indebtedness are to be used to repay other Indebtedness, the foregoing shall not limit the Borrower’s ability to give Pro Forma Effect to such repayment of Indebtedness and all other appropriate pro forma adjustments. Notwithstanding anything to the contrary contained herein, any obligation of a Person under a lease that is not (or would not be) required to be classified and accounted for as a Capital Lease on a balance sheet of such Person under GAAP as in effect and implemented on the Closing Date shall not be treated as a Capital Lease as a result of the adoption of changes in GAAP or changes in the application of GAAP.
Appears in 1 contract
Samples: Credit Agreement (R1 RCM Inc.)
Accounting Terms and Principles. (a) GAAP. All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any financial statement Financial Statement hereafter adopted by Holdings shall be given effect for purposes of measuring if such change would affect a calculation that measures compliance with any provision of Article VI 5 or VII, calculating the Applicable Margin or otherwise determining any relevant ratios and baskets which govern whether any action is permitted hereunder Article 8 unless the BorrowerBorrowers, the Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statementsFinancial Statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein in Article 5 and Article 8 shall be made, without giving effect to (i) any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other Liabilities liabilities of Holdings any Loan Party or its Restricted Subsidiaries any Subsidiary of any Loan Party at “fair value.” Notwithstanding the foregoing, any lease that would be characterized as an operating lease in accordance with GAAP on December 31, 2018 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and (iinot as a Capital Lease) any treatment for purposes of Indebtedness in respect this Agreement regardless of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower following such date (or the Agent shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio implementation or requirement to preserve the original intent thereof in light effectiveness of such change to GAAP (subject to the approval of the Required Lenders); provided that until so amended (i) such ratio or requirements shall continue to be computed in accordance with GAAP prior to such change thereto and (ii) the Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financials statements of Holdings and its Subsidiaries dated December 31, 2016, for all purposes of this Agreement, notwithstanding any change in GAAP relating theretofollowing such date) that would otherwise require such lease to be recharacterized (on a prospective or retroactive basis or otherwise) as a Capital Lease. FOURTH AMENDED AND RESTATED CREDIT AGREEMENT RUSH ENTERPRISES, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. A breach of a financial covenant contained in Article VII shall be deemed to have occurred as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to AgentINC.
Appears in 1 contract
